Re-writing the Constitution on historical principles

Oct 2014
430
Las Vegas NV
Many Americans speak of the Constitution and the Bill of Rights with a mindless and sanctimonious reverence, akin to the Ark of the Covenant, waving it like the flag on the Fourth of July to support whatever cause or political point of view that happens to suit them. In my experience, these pseudo-patriots are clueless as to the text of any of the articles or amendments and are totally ignorant of any of the major Supreme Court decisions which have construed the fundamental law of the land. Some historians have suggested that these documents, along with the Declaration of Independence, form the cornerstone of an American civil religion with rituals such as reciting the Pledge of Allegiance to the Flag. [see ‘’American civil religion’’’ in Wikipedia].

American history bears witness to the imperfections of the Constitution with its amendments and the countless judicial decisions which have construed it. Let us imagine that, like the emperor Justinian, we wish to codify American law by reviewing all the events of America history that caused a constitutional crisis or gave rise to a landmark Supreme Court decision to fashion a ‘’Constitutional Code.’’ The Constitutional Code would set forth legal principles that would prevent history from repeating itself [like the present idea of Texas seceding from the Union] or would resolve current social and economic problems that have their origins in events of the past [such as banning discrimination rooted in Jim Crow laws or guaranteeing the right to unionize based on events of the labor movement from 1869 to 1935].

To get the discussion started, I would:

[1] include a specific provision for judicial review of federal and state legislation along with the standards for determining the validity of statutes [Marbury v. Madison];

[2] clarify that the Constitutional Code should be liberally and broadly construed in favor of federal legislation aimed at protecting national interests and individual civil rights even though such rights are not specifically enumerated [McColloch v Maryland; Gibbons v Ogden; Wickard v. Filburn; Ninth Amendment]; and

[3] limit state legislation to traditional areas of legitimate state interests such as health, education, welfare, safety, expenditure of state tax funds, and efficiency of public administration – provided that [A] state law is not pre-empted by federal law, state law does not conflict with federal law, and [C] state law does not infringe upon individual civil rights protected by the Constitutional Code. [Decisions too numerous to list, but generally all the decisions of the Progressive Era, New Deal, and Civil Rights Movement].
 
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May 2013
1,696
Colorado
The Constitution and whether it is to be broadly or narrowly interpreted goes back to the Washington Administration. Even those who were at the Convention could not agree on it after it went into effect, thus the political allies who wrote the Federalist Papers, Hamilton and Madison, became rivals and Washington split with Madison on the application of the document. Yet, Jefferson and Madison who early on argued for a limited Federal government gave into temptation and though knowing their actions were extralegal, purchased Louisiana. Again, Jefferson espoused what is now known as the "departmental theory" of government, yet he was not beyond asking the Supreme Court to review a law (I forget which one) before it was even voted on. He was told no, and therefore we don't have a constitutional court, the way some nations do (which decide on laws before they are voted on). Conservatives and liberals, the left and the right, up and down and in-between even today use various laws and decisions as it suits them. Judicial review is good when it suits them, not good when it doesn't.

That the document is so flexible is why it works and is its genius - only failing us once. It provides a framework for making decisions and we are spared the crisis other nations have of having to redo their entire document every few decades or even more often.

As for Texas, the original plan as I recall was to split it into four states. Too bad they did not do that.

I refer the readers to The Federalist #85 on amendments http://www.constitution.org/fed/federa85.htm and to http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1096&context=wmlr on judicial review.

As the latter article says, they did not come out and say "judicial review" the way we say it, in those terms is because they thought it was self evident. We cannot fault them for our shortcomings. Judicial review - to use todays term - was in use prior to the Constitution particularly in Virginia (and NY, NJ, RI & NH) where it had been exercised by the Privy Council since Virginia became a Royal Colony in 1625. (Note on the term Privy Council. This was another name for the Governor's Council. The Privy Council retained its prerogatives in the Virginia Constitution of 1776 and doesn't just refer to the authority of the Crown.)
 
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May 2013
1,696
Colorado
From Madison, Federalist 39 "...the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."
 

diddyriddick

Historum Emeritas
May 2009
14,692
A tiny hamlet in the Carolina Sandhills
That the document is so flexible is why it works and is its genius - only failing us once. It provides a framework for making decisions and we are spared the crisis other nations have of having to redo their entire document every few decades or even more often.
Agreed. If it ain't broke, don't fix it.
 
Oct 2014
430
Las Vegas NV
Agreed. If it ain't broke, don't fix it.
The problem is that constitutional law is a body of numerous Supreme Court decisions that, unless one is a lawyer, the average citizen does not understand. For example, if a state law allegedly discriminates against a group, the court may apply a 'strict scrutiny' test or a 'rational basis' test or an 'intermediate scrutiny' test depending on the classification of the group discriminated against. Even the decisions are nebulous with very minute and subtle distinctions made between cases. For example, Bowers v Hardwick [1986] upheld sodomy laws while Lawrence v Texas [2003] invalidated them. The former was decided on equal protection grounds, the latter on substantive due process grounds. The citizen with no legal training is at a loss to explain the difference.
 
May 2013
1,696
Colorado
You are right it does get more and more complex, and the two cases cited above get more confusing now that gay marriage is legal in most states, but everything is more complex from banking to cars. But I don't think we need to make it simpler, rather we need to be more educated. There may come the day when the Constitution doesn't meet our needs, but hopefully it will happen long after I am gone. We can't even craft a budget at the national level, rewriting Constitution is beyond the scope for now.
 
Sep 2014
1,222
Queens, NYC
Quote:

] include a specific provision for judicial review of federal and state legislation along with the standards for determining the validity of statutes [Marbury v. Madison;
------------------------------------------------------------------------------------
What standards?

People like me would go for one standard, possibly very restrictive; others a more liberal standard.

Quote:
[2] clarify that the Constitutional Code should be liberally and broadly construed in favor of federal legislation aimed at protecting national interests and individual civil rights even though such rights are not specifically enumerated [McColloch v Maryland; Gibbons v Ogden; Wickard v. Filburn; Ninth Amendment];
----------------------------------------------------------------------------------No.

If the right is not firmly established in the rights accepted in the 1780s; or not specifically granted afterwards by proper authorities-no broad construction.
 
May 2013
1,696
Colorado
It comes down to the Necessary and Proper Clause and we have been debating that since 1788. It was intentionally left vague. George Washington sided with the broad constructionists. Jefferson with the strict constructionists, but time and time again, the strict constructionist threw it by the wayside when it suited them. So in the end, by theory and practice, it seems that broad constructionist is the way it is.
 
Nov 2012
887
Virginia
Biggest problem with the Constitution is that it has been under attack by lawyers since its inception. Not all of the attacks and interpretations have been bad things such as women's suffrage and equal protection under the law, but there have been idiotic interpretations too-see Dred Scott and others.

Where I get nervous is when politicians call the Constitution "a living document" which is short speak for "we are going to attempt fundamental change while bypassing the Constitution"
 
May 2013
1,696
Colorado
Justice Marshall: "...we must never forget it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

The Founders could not conceive of the internet, airplanes or even the telegraph. Pipelines stretching from coast to coast and the accompanying property rights would seem crazy to them. Modern finance had not yet come into being - they were still struggling with establishing a currency (in parts of the US, until the 1840's there was not even coinage - it was a barter economy). Derivatives, swap defaults, bundled mortgages, floating rate loans, mutual funds were not even on the horizon. Germ theory, gene therapy, artificial insemination, a child with three parents and who has what rights when it comes to the child, not to mention the personhood of frozen embryos - these would seem like science fiction - except science fiction had not yet come about. If you were to take the Founders from the north and the south, they would not even agree on whether African Americans were equal in intelligence to whites.

The records of the ratifying convention in Richmond shows that they were struggling even then with the meaning and subsequent consequences of interoperation of what they were voting on. If they weren't sure - and some of the people who attended the Constitutional Convention were in Richmond, what makes people today such geniuses that they know what they meant?

Originalism as currently expounded in the popular media only gained popularity in the 1980's and is fundamentally disingenuous. It is simply not possible to say what the original intent was without putting one's own twist on it since the Founders could not agree on its meaning. Justice Marshall encapsulates the Common Law tradition in the quote above, they knew they were not frozen in time and that Americans would have to think, the law is not just a machine.

"The Constitution is the guide which I never will abandon." George Washington
 
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